Q640 Baroness Whitaker: Yes, but
a specific offence of trading in influencedo you think
that is covered in clauses 1 to 3 as Lord Falconer said?

Mr Justice Silber: I suspect it
probably would be. It is much easier to test it by means of an
example. When I thought about this I thought that it would be
covered by clauses 1 to 3 as falling within that, yes.

Q641 Baroness Whitaker: I cannot
think of an example. Can you?

Mr Justice Silber: You would still
be conferring an advantage or it would normally fall within one
of those areas because it would either be performing a function
corruptly or conferring or obtaining an advantage.

Q642 Lord Waddington: Is it not correct
that in some countries there is an offence of abuse of public
property? Is that a starter, catching anyone who places contracts
on behalf of the public? I think that was suggested as one possibility.

Mr Justice Silber: I do not know
what happens with that.

Q643 Lord Carlisle of Bucklow: There
is an offence in this country of misfeasance in public property.

Mr Justice Silber: There is.

Q644 Lord Carlisle of Bucklow: Did
the Law Commission consider that because it covers a lot of corruption?

Mr Justice Silber: We in fact
started doing corruption with a lot of support from Lord Nolan
and his Committee and then we also looked separately at misuse
of public office which looked into all those areas. I did that
for a number of reasons in my sole capacity but that really was
put on ice while Dame Shirley Porter's case was going through
the courts. The issue in that case related to what was legitimate
political activity. It is a very important area and is a necessary
part. It would be useful if somebody could at some stage decide
whether or not we do need that sort of thing.

Q645 Lord Carlisle of Bucklow: Can
one look at corruption in isolation?

Mr Justice Silber: Oh, very much
so.

Q646 Lord Carlisle of Bucklow: And
also where there is misfeasance in public office?

Mr Justice Silber: Very much so,
because corruption has got very different elements to it and is
achieving different purposes. There might be some cases where
you are caught by both but certainly, for example, private law
matters and private capacity matters are completely-

Q647 Chairman: Even trading in influence
arguably might be picked up by one of the criminal offences here.
There is no question of either misfeasance in public office or
abuse of public property in themselves forming crimes under this
Act, but if they do exist as separate potential criminal offences
should they come into this Act or should they just be a separate
Act?

Mr Justice Silber: I think they
should be a separate Act because it raises a whole series of different
issues. It brings up points about the inter-relationship between
that offence and the word of the Ombudsman and the Local Government
Ombudsman. You are dealing with different concepts and you have
to work out how it would fit in with the existing points. One
of the difficult areas is to work out what happens if a politician
who is elected wants to do something and tells his officials to
do it to determine their duties in that situation.

Chairman: We have had a number of suggestions
that perhaps some adverb might be introduced into the definition.

Q648 Mr Stinchcombe: One of the suggestions
that has been made is whether we should incorporate the word "dishonestly".
I do not know whether you have any views as to whether that will
strengthen or weaken or harm in any way the legislation?

Mr Justice Silber: I am very strongly
against that because the word "dishonestly" is a very
uncertain word. It means different things to different people.
For example, is it dishonest if I were to take a picture into
an antique dealer and he said, "Oh, that is a Canaletto",
and I knew it was not but I receive a very large sum of money
on the false basis? Is it dishonest for me to use the telephone
in the Law Courts to phone home or my aunt in Australia? Where
does the use of phones become dishonest? In many statutory offences,
the word "dishonestly" is used where the matter would
normally be criminal in itself, for example, obtaining property
by deception would in most people's minds be a criminal act and
therefore the word "dishonestly" in the statutory definition
of that offence does not add very much to it. In the case of theft,
where you have appropriation of property belonging to another,
that in itself would normally be a dishonest act and the main
thing that "dishonestly" achieves in the statutory definition
is to make sure that people are not convicted if they have got
a bona fide good faith right to the item in question. There
"dishonestly" is not doing all the work to define the
offence. If you wanted to put "dishonestly" into an
offence, it would then be achieving a substantial function and
has a totally uncertain meaning.

Q649 Lord Waddington: One thing you
do say is that the offence does imply a breach of duty.

Mr Justice Silber: Oh yes.

Lord Waddington: If the offence implies
a breach of duty I cannot for the life of me see why some words
such as those could not be incorporated into the Bill. You see,
the difficulty is still the one I identified earlier on. You have
somehow got to tell the ordinary layman when he crosses the line
and begins to commit a criminal offence and I do not see how,
reading this Bill when there is not the slightest mention of anything
approaching moral turpitude or wrongdoing or all the rest of it,
he could possibly be expected to understand that he has committed
a criminal offence, as I mentioned earlier, if he slips ten quid
to a baggage handler. I just do not understand what the objections
are to reinforcing the point that there must be moral turpitude.
I am not sold on "dishonestly". I would like you to
answer why you object to any of these terms. All sorts of terms
have been floated which have "undue", which have "unfair",
we have had "breach of duty". "Dishonestly"
is only one in a whole rag-bag of possibilities but I cannot see
why you exclude all of them.

Q650 Chairman: They are two quite
different categories. One is breach of a legal duty and the other
is a breach of a moral duty. Why should not one of those somehow
creep into this?

Mr Justice Silber: Could I put
something in writing, because I would like to think about the
point you have mentioned, about replacing the word "functions"
in Clause 5(1) with "duties"? I do not know if that
would make it easier because that might answer Lord Waddington's
point, because if you look at that, and if one were to replace
in 5(2)(a) the word "functions" with "duties",
that is something I would very much like to think about. I am
not attracted at all by the use of words like "undue"
or "wrongful" because if I had a client who asked me
what those words meant in the context of a case I think I would
scratch my head and I would have to say I do not know the answer.

Q651 Chairman: We have been told
that "unduly" obviously comes from the civil law and
dûment is a well known word in French law, not just
immorally but including illegally in some way.

Mr Justice Silber: The trouble
with using a phrase like "performing your functions in an
illegal manner" is that that just begs the question.

Q652 Chairman: Not necessarily. You
would receive a bribe in the performance of something which was
otherwise unlawful.

Mr Justice Silber: Yes. I think
the word "duties" might well be a word that might make
it much clearer. "Duties" entails an obligation rather
than the word "functions" which I think means a sort
of mode of working.

Q653 Chairman: But were you influenced
in leaving out "dishonestly" and some of these other
words by what the courts had said over the years? I think the
courts said in one or two cases that "corruptly" did
not mean dishonestly.

Mr Justice Silber: Yes.

Q654 Chairman: Did that influence
the Law Commission?

Mr Justice Silber: Our general
view has been that that has influenced us. The other point was
that in another context we found that the word "dishonestly"
is such a vague and uncertain word that people would not know
in advance what would be caught by it and what would not be caught
by it. As I said in answer to Mr Stinchcombe's question, it is
all right using the word "dishonestly" where it has
really been put into negative criminal liability in litigation
circumstances. In other words, in theft, if you found the item
in issue by mistake or you thought it had been abandoned the requirement
for the act to be done dishonestly absolves you from criminal
liability, but where you try to get it to do all the work then
I think you are running into serious difficulties.

Q655 Lord Waddington: I think I would
clearly be behaving dishonestly if I gave a baggage handler ten
pounds to go and get somebody else's bag but I would not be behaving
dishonestly, would I, if I told him to go and find my bag? That
is the difference.

Mr Justice Silber: As I say, I
have put in my note what I think is wrong and the problems about
the word "dishonestly", but I do not know if you think
it is worthwhile thinking about replacing the word "functions"
with the word "duties".

Chairman: It would be very kind and perhaps
you would send us a note about it.

Q656 Mr Stinchcombe: On that suggestion,
if you do that, so that the core wrongfulness is the breach of
duty, does that not make misfeasance in public office much more
a corruption offence because there you can readily imagine a public
officer exercising powers and duties in a completely malevolent
fashion, deliberately refusing to give people tenancies in council
houses because of the colour of their skin or sanctioning play
equipment next door to somebody they do not like because it causes
a disturbance?

Mr Justice Silber: Misfeasance
in public office is an extremely vague offence; that was the feature
of it that upset Lord Nolan. He thought that the offence was so
uncertain that nobody knew what it was. The big difference between
that and corruption is that in corruption there is a benefit being
offered or conferred. In misfeasance in public office it can be
someone just doing something out of stubbornness, because of omission
or laziness or for different purposes. It is the concept of benefit
and advantage which is the hallmark of corruption which is really
very different from what is construed as misfeasance in public
office. You might well get a case where people are caught on both.

Q657 Dr Turner: I think it could
be said that there is something of an analogy that could be drawn
with the crime of attempting to pervert the course of justice
and involving, clearly, intent, either in the long or medium term,
to do that. One way you could express it is to have a crime (a)
to frustrate or pervert or interfere with the proper functioning
of government, the administration of justice or the delivery of
public services, and then (b) to pervert, frustrate or affect
detrimentally the proper functioning of competitive markets. That,
for instance, would cover the kind of situation I was talking
about where you had contractors forming a cartel to force up prices
in bidding for local government services. Would you agree that
if there was a formulation like that you would not need the complexity
of the principal/agent relationship and you might not need to
include or define the word "corruptly"?

Mr Justice Silber: Could I reply
to that when I see on paper those conditions which you have just
suggested? At first blush I think there are difficulties with
it. I would like to look at it and reply to that in writing. I
am not trying to be evasive but it would be easier to see what
the points are and to point out what might or might not be covered
by it.

Q658 Dr Turner: I am sure that could
be arranged. A further suggestion is that we have received evidence
from the OECD representative that the Bill falls short of fulfilling
our obligations to comply with the OECD treaties. Do you agree
with that possibility?

Mr Justice Silber: I am afraid,
and I must apologise, that I do not know what the terms are in
the current OECD treaties. Certainly at the time when we drafted
our proposals we had every reason to believe that they complied
with what the OECD requirements were in 1997. I just do not know
what the present position is. I have no access to what their requirements
are at the present time.

Q659 Dr Turner: Perhaps that is another
one which will need to be pursued in writing.

Mr Justice Silber: I would have
thought that Lord Falconer or Lord Goldsmith would have a much
better idea of what those obligations were than I would.